Citation Nr: 0714406
Decision Date: 05/15/07 Archive Date: 06/01/07
DOCKET NO. 06-14 095A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St. Louis,
Missouri
THE ISSUE
Whether new and material evidence has been received to reopen
a claim of entitlement to service connection for a low back
disability.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
C. Moore, Associate Counsel
INTRODUCTION
The veteran had active service from November 1944 to July
1946.
This matter comes to the Board of Veterans' Appeals (Board)
on appeal from a November 2005 rating decision of the St.
Louis, Missouri Regional Office (RO) of the Department of
Veterans Affairs (VA). The decision apparently reopened a
previously denied claim. However, the United States Court of
Appeals for Veterans Claims (Court) has made it clear that
even if an RO makes an initial determination to reopen a
claim, the Board must still review the RO's preliminary
decision in that regard. Barnett v. Brown, 8 Vet. App. 1, 4
(1995).
The issue of entitlement to service connection for a low back
disability is being remanded is addressed in the REMAND
portion of the decision below and is REMANDED to the RO via
the Appeals Management Center (AMC), in Washington, DC.
FINDINGS OF FACT
1. In an unappealed determination dated in August 1946, the
RO denied the veteran's claim for service connection for a
low back disability.
2. Evidence added to the record since the August 1946 RO
determination, considered in conjunction with the record as a
whole, is new, relates to an unestablished fact necessary to
substantiate the veteran's claim, and raises a reasonable
possibility of substantiating the veteran's claim.
CONCLUSIONS OF LAW
1. The RO's decision of August 1946, that denied the
veteran's claim of service connection for a low back
disability, is final. 38 U.S.C.A. § 7105 (West 2002); 38
C.F.R. §§ 3.104(a), 20.302, 20.1103 (2006).
2. New and material evidence has been received and the claim
for service connection for a low back disability is reopened.
38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a)
(2006).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
VCAA
The Veterans Claims Assistance Act of 2000 (VCAA) describes
VA's duty to notify and assist claimants in substantiating a
claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2006).
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his or her representative, if any, of any
information, and any medical or lay evidence, that is
necessary to substantiate the claim. 38 U.S.C.A. § 5103(a)
(West 2002 & Supp. 2006); 38 C.F.R. § 3.159(b) (2006);
Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA
notice must inform the claimant of any information and
evidence not of record (1) that is necessary to substantiate
the claim; (2) that VA will seek to provide; (3) that the
claimant is expected to provide; and (4) must ask the
claimant to provide any evidence in her or his possession
that pertains to the claim in accordance with 38 C.F.R.
§ 3.159(b)(1). VCAA notice should be provided to a claimant
before the initial unfavorable agency of original
jurisdiction (AOJ) decision on a claim. Pelegrini v.
Principi, 18 Vet. App. 112 (2004).
On March 3, 2006, the United States Court of Appeals for
Veterans Claims (Court) issued its decision in the
consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet.
App. 473 (2006). The Court in Dingess/Hartman holds that the
VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R.
§ 3.159(b) apply to all five elements of a "service
connection" claim. As previously defined by the courts,
those five elements include: (1) veteran status; (2)
existence of a disability; (3) a connection between the
veteran's service and the disability; (4) degree of
disability; and (5) effective date of the disability. Upon
receipt of an application for "service connection,"
therefore, the Department of Veterans Affairs (VA) is
required to review the information and the evidence presented
with the claim and to provide the claimant with notice of
what information and evidence not previously provided, if
any, will assist in substantiating or is necessary to
substantiate the elements of the claim as reasonably
contemplated by the application. This includes notice that a
disability rating and an effective date for the award of
benefits will be assigned if service connection is awarded.
With respect to VCAA notice requirements for new and material
evidence claims, the Court has held that the appellant must
be informed of what type of evidence would be considered
"new" and "material", as well as be provided with a notice
letter that describes what evidence would be necessary to
substantiate that element or elements required to establish
service connection that were found insufficient in the
previous denial. Kent v. Nicholson, 20 Vet. App 1 (2006).
In this case, a July 2004 letter notified the veteran that
new and material evidence could be submitted to reopen his
claim, indicated what type of evidence would qualify as
"new" evidence, and specifically informed him of what
evidence would be necessary to substantiate the element or
elements required to establish service connection that were
found insufficient in the previous denial.
With regard to the duty to assist, the claims file contains
the veteran's service medical records, private and VA
treatment records, and VA examination reports. Additionally,
the claims file contains the veteran's statements in support
of his claim. The Board has carefully reviewed such
statements and concludes that he has not identified further
evidence not already of record. The Board has also perused
the medical records for references to additional treatment
reports not of record, but has found nothing to suggest that
there is any outstanding evidence with respect to the
veteran's claim. Thus, based on the foregoing, the Board
finds that all relevant facts have been properly and
sufficiently developed in this appeal and no further
development is required to comply with the duty to assist the
veteran in developing the facts pertinent to his claim.
Essentially, all available evidence that could substantiate
the claim has been obtained.
Legal Criteria
Pursuant to 38 U.S.C.A. § 7105(c), a final decision by the RO
may not thereafter be reopened and allowed, except as
provided by 38 U.S.C.A. § 5108, which indicates that "[i]f
new and material evidence is presented or secured with
respect to a claim, which has been disallowed, the [VA] shall
reopen the claim and review the former disposition of the
claim." Therefore, once an RO decision becomes final under
section 7105(c), absent the submission of new and material
evidence, the claim cannot be reopened or adjudicated by VA.
38 U.S.C.A. §§ 5108, 7105(c)(West 2002); Barnett v. Brown, 83
F.3d 1380, 1383 (Fed. Cir. 1996).
A claimant may reopen a finally adjudicated claim by
submitting new and material evidence. New evidence means
evidence not previously submitted to agency decisionmakers.
Material evidence means existing evidence that, by itself or
when considered with previous evidence of record, relates to
an unestablished fact necessary to substantiate the claim.
New and material evidence can be neither cumulative nor
redundant of the evidence of record at the time of the last
prior final denial of the claim sought to be reopened, and
must raise a reasonable possibility of substantiating the
claim. 38 C.F.R. § 3.156(a)(2006).
For the purpose of establishing whether new and material
evidence has been submitted, the credibility of the evidence,
although not its weight, is to be presumed. Justus v.
Principi, 3 Vet. App. 510, 513 (1992).
Legal Analysis
The veteran asserts that new and material evidence has been
submitted to reopen his claim for service connection for a
back disability. The record reflects that the RO, in an
August 1946 decision, denied the veteran's claim for service
connection for a back disability, on the basis that there was
no evidence of the existence of a current back disability.
Without a diagnosis of the claimed condition, there could be
no service connection. Cf. Degmetich v. Brown, 104 F.3d 1328
(1997). No appeal was taken from that determination. As
such, it is final. 38 U.S.C.A. § 7105.
The evidence received since the final August 1946 RO decision
includes private outpatient records showing post-service
treatment for back disability that has been diagnosed as
among other things, lumbar strain and degenerative disc
disease. This additional evidence, which relates to
unestablished facts necessary to substantiate the claim,
(whether the veteran has a current back disability), was not
previously considered and is not cumulative or redundant.
Thus, the additional evidence, considered in conjunction with
the record as a whole, raises a reasonable possibility of
substantiating his claim. Accordingly, the Board concludes
that the evidence received subsequent to the August 1946 RO
denial, considered in conjunction with the record as a whole,
is new and material and the claim for service connection for
a low back disability, is reopened.
ORDER
As new and material evidence has been submitted to reopen a
claim of entitlement to service connection for a low back
disability, the appeal, to this extent, is granted.
REMAND
Having reopened the claim for service connection for a low
back disability, the reopened claim must be adjudicated by
the RO, de novo, prior to appellate consideration of the
reopened claim. In this regard, the Board additionally finds
that further development of the record is indicated.
The veteran asserts that service connection is warranted for
a low back disability. In this regard, in order to establish
service connection on a direct basis the veteran must provide
evidence of a current disability, an in-service injury or
disease, and a nexus between the current injury and an in-
service disease or injury. The record demonstrates that the
veteran has a current back disability that has been diagnosed
as, among other things, degenerative disc disease and lumbar
strain. The veteran's service medical records also reflect
that in April 1945 he sought treatment for what was diagnosed
as acute lumbar, left myositis. However, the record does not
reflect that the veteran has been afforded a VA examination
and clinical opinion to determine whether it is at least as
likely as not that his current low back disability is related
to any incident of his service. Such would be useful in the
de novo adjudication of the veteran's claim.
Accordingly, the case is REMANDED to the AMC for the
following action:
1. Schedule the veteran for a VA
orthopedic examination, with the
appropriate specialist, to ascertain the
nature and etiology of all current low
back disabilities. The claims folder
should be made available for review by
the examiner in conjunction with the
examination. The examiner is requested
to provide an opinion as to whether it is
at least as likely as not that the
veteran has a current low back disability
that is etiologically related to any
incident in service, to include his
documented in-service treatment for
myositis.
2. Thereafter, the AMC should
readjudicate the reopened claim of
entitlement to service connection for a
low back disability. If the benefit
sought remains denied, the AMC should
issue a supplemental statement of the
case and afford the veteran the
appropriate opportunity to respond.
Thereafter, the case should be returned
to the Board, as warranted.
The veteran has the right to submit additional evidence and
argument on the matter the Board has remanded. Kutscherousky
v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2006).
______________________________________________
J. A. MARKEY
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs